NO. 03-00433-CR

* * * 

In The 3rd District 

Court of Appeals of Texas 

* * * 

Hector Hato Laboy 

v.

The State of Texas 

* * * 

Appealed from the 

Travis County 

County Court at Law No. 4 

Trial Court Cause No. D-1-DC-13-204642

___________________________________________________________________

APPELLANT’S BRIEF

___________________________________________________________________

 John S. Butler 

 State Bar No. 03526150 

 700 Lavaca Street, Suite 1400

 Austin, Texas 78701 

 Telephone (512) 472-3887

 Facsimile (512) 233-1787

 Email butler@lawyer.com 

 ATTORNEY FOR APPELLANT 

ORAL ARGUMENT REQUESTED

ACCEPTED

03-15-00433-CR

7215141

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/2/2015 4:46:22 PM

JEFFREY D. KYLE

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/2/2015 4:46:22 PM JEFFREY D. KYLE Clerk
-2-

Identities of Parties and Counsel

Appellant: Hector Hato Laboy

Trial Counsel: Donna Keith

605 West Oltorf Street

Austin, Texas 78755

Appellee: The State of Texas

Appellant Counsel and

Trial Counsel: Rosemary Lehmberg

Travis County District Attorney

P O Box 1748

Austin, Texas 78767

-byKelly Gier

Assistant District Attorney

Trial Judge: Hon. Mike Denton

P O Box 1748

Austin, Texas 78767
-3-

Table of Contents

Identity of Parties and Counsel ...2

Table of Contents ...3

Index of Authorities ...4

Statement Regarding Oral Argument ...4

Statement of the Case ...5

Issues Presented ...5

Statement of the Facts ...5

Summary of the Arguments ...7

Argument ...10

Prayer for Relief ...11

Certifications ...13
-4-

Index of Authorities

Strickland v. Washington, 466 U.S. 668 (1984) ...8

Devine v. State, 786 S.W.2d 268 (Tex.Crim.App.1989) ...7

Cook v. State, 940 S.W.2d 344 (Tex.App.—Amarillo 1997,) ...7, 8

In re A.C. 48 S.W.3d 899 (Tex.App.—Fort Worth 2001) ...7

Davis v. State, 413 S.W.3d.813 (Tex.App.—Austin 2013) ...8

Frangias v. State, 392 S.W.3d 642 (Tex.Crim.App.2013) ...8, 9

Davis v. State, 413 S.W.3d.813 (Tex.App.—Austin 2013) ...9

United States Constitution Amendments 5 and 14 ...9

Texas Constitution art. I §10 ...9

TEX. PEN. CODE ANN. §22.07(a)(2) ...9

BLACK’S LAW DICTIONARY (6th ed.1990) ...7, 10

Statement Regarding Oral Argument

Due to the fact-intensive nature of the arguments presented herein, 

Appellant requests that the Court hear oral argument.
-5-

Statement of the Case

Appellant was placed on five years probation for the offense of Assault 

Family Violence, a third-degree felony. On June 12, 2015, a hearing was held on 

the State’s Motion to Revoke Probation. After hearing evidence and argument the 

trial court revoked Appellant’s probation and sentenced him to three years 

imprisonment.

Issues Presented

1. The trial court erred in finding that Appellant violated the term of his 

probation by committing the offense of Terroristic Threat.

2. Trial court counsel was ineffective in failing to object to testimony that was 

hearsay and violated Appellant’s right to confrontation under Federal and 

State constitutional law.

Statement of Facts

On August 12, 2013, Appellant Hector Laboy was placed on five years’ probation 

for felony assault family violence. On March 13, 2015, the State filed a Motion to 

Revoke Community Supervision, alleging that he submitted positive urine 
-6-

specimens for controlled substances, he failed to submit a urine or breath specimen 

at his probation officer’s request, failed to pay various court costs and fines, failed to 

have no contact with victim, committed the offense of Terroristic Threat on or about 

February 13, 2015, and committed the offense of Criminal Mischief on or about 

February 14, 2015. (Clerk’s Record [CR] p.50). A hearing on this Motion was held 

on June 12, 2015. At the start of the hearing, The State waived the ―no contact‖ 

allegation and the allegation of Terroristic Threat of February 13, 2015, while 

adding an allegation of Terroristic Threat on February 14, 2015. Appellant did not 

object to the amendments. (Court Reporter’s Record [CRR] v.2 p.5.).

Appellant pled true to the allegations about controlled substances. (CRR. V.2 

p.7).

Travis Lucas of the Smithville Police Department testified that he was

responding to call of Criminal Mischief when he encountered Appellant, driving 

silver Honda sedan. As the call described the suspect leaving the scene in a silver 

Honda, the officer detained Appellant, searched his vehicle, and released him. 

Officer Lucas then proceeded to the scene, wherehe spoke to Jakuri McLaurin, who 

―informed [him] of the criminal mischief act.‖ (CRR v. p.13) and that ―Jacuri stated 

that he actually observed [Appellant] slash the tires.‖ (CRR v.2 p.15). The office 
-7-

also testified that he listened to a phone call (on speakerphone) received by Cassie 

Durfee, and that he recognized Appellant on the phone by his voice and his 

description of his recent encounter with Officer Lucas. According to Lucas, 

[Appellant] ―stated that he was going to kill Jakuri.‖ (CRR v.2 p.14).

Summary of the Arguments

There is insufficient evidence to support the conclusion that 

Appellant committed the offense of Terroristic Threat

The offense of Terroristic Threat requires that the victim be placed ―in fear on 

imminent serious bodily injury.‖ TEX. PEN. CODE ANN. §22.07(a)(2). Imminent 

means ―[n]ear at hand; mediate rather than immediate; close rather than touching; 

impending; on the point of happening; threatening; menacing; perilous.‖ 

BLACK’S LAW DICTIONARY 750 (6th ed.1990); see also Devine v. State, 786 

S.W.2d 268, 270 (Tex.Crim.App.1989); Cook v. State, 940 S.W.2d 344, 347 
-8-

(Tex.App.—Amarillo 1997, pet. ref’d). In re A.C. 48 S.W.3d 899, 904 

(Tex.App.—Fort Worth 2001). 

The injury in this case was not ―on the point of happening.‖ There was only: 

―He stated that he was going to kill Jakuri.‖ (CRR v.2 p.14). In Cook v. State, the 

Amarillo Court of Appeals found sufficient evidence of Terroristic Threat where 

the defendant left three message ―in rapid succession‖, explicitly stating ―this is a 

g---damn threat‖ and that ―he was looking for [his victim] and that he would injure 

him when he found him.‖ Cook v. State, 940 S.W.2d 344, 348 (Tex.App.–Amarillo 

1997). In this case, Appellant ―stated that he was going to kill Jakuri‖ once, 

without elaborating, in a telephone call. (CRR v.2 p.14). Appellant had last been 

seen ―leaving the scene.‖ (CRR v.2 p.10).

Trial court counsel was ineffective in failing to object to testimony 

that was hearsay and violated Appellant’s right to confrontation 

under Federal and State constitutional law.

An ineffective assistance of counsel claim is subject to the Strickland

standard, requiring a defendant to prove by a preponderance of the 

evidence that (1) counsel’s representation fell below an objective 

standard of reasonableness under prevailing professional norms and 

(2) the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
-9-

An accused is not entitled to entirely errorless representation, and we 

look to the totality of the representation in gauging the adequacy of 

counsel’s performance. Frangias v. State, 392 S.W.3d 642, 653 

(Tex.Crim.App.2013). But even a single instance of counsel’s error 

can rise to the level of deficient performance, ―if the error was 

egregious and had a seriously deleterious impact on the balance of the 

representation.‖ Id.

Davis v. State, 413 S.W.3d.813, 828 (Tex.App.—Austin 2013, pet. ref’d.).

In this case, the error was counsel’s failure to object to the testimony of 

Travis Lucas: ―I originally started talking to Jacuri [McLaurin] and he ... informed 

me of the criminal mischief act, and he was showing me the tires.‖ (CRR v.2 p.13).

This was unadulterated hearsay. Tex. R. Evid 801(d); 802. It also violated 

Appellant’s right to confront his accusers under the United States Constitution 

Amendments 5 and 14 and the Texas Constitution art. I §10. Insofar as this was the 

only evidence presented on the issue of whether Appellant committed the offense of 

Criminal Mischief, there could be no reason to allow this testimony to go 

unchallenged. If trial counsel had objected, it would have been excluded, and there 

would have been no evidence to support this particular allegation. Failure to object 

in this instance clearly ―had a seriously deleterious impact.‖ Frangias at 653.
-10-

Argument

The State alleged in this case that Appellant violated the terms of his 

probation by (a) submitting positive urine specimens for controlled substances, (b) 

failing to submit a urine specimen when directed by his probation officer, (c) failure 

to pay money, (d) committing the offenses of Terroristic Threat and Criminal 

Mischief. 

The written judgment notwithstanding, the trial court judge explicitly stated 

in open court that he was not revoking Appellant’s probation because of money or 

urine samples. See CRR v.2 p.33: ―I’m not concerned about fees.‖ and CRR v.2 

p.36: ―[T]he missed UA’s the positive UA’s ... I’m not going forward on that.‖ 

The judge made it clear that his only bases for revocation were the two new 

offenses: ―But I will go forward on what is correct, if I'm on probation for an assault 

and then I make threats, these kinds of threats as well as destroy property, sir, I do 

find that allegation -- those allegations true, so I am going to revoke your 

probation.‖ (CRR v.2 p.36).

Though a threat was made, it did not rise to the level of ―terroristic‖ because 

it was not imminent, not ―[n]ear at hand; mediate rather than immediate; close 

rather than touching; impending; on the point of happening; threatening; 
-11-

menacing; perilous.‖ BLACK’S LAW DICTIONARY 750 (6th ed.1990). Thus, 

no offense.

But for trial counsel’s failure to object to testimony – about Criminal 

Mischief - that was clearly inadmissible on both hearsay and confrontation 

grounds, there would be no evidence at all to support the judge’s decision to 

revoke Appellant’s probation.

Prayer

WHEREFORE, Appellant prays this Court grant the request, and reverse the 

judgment and sentence of the trial court, and remand the case to the trial court for a 

new hearing. Appellant further requests any and all such other relief to which he 

may be entitled.
-12-

Respectfully submitted,

John S. Butler

ATTORNEY FOR APPELLANT

 700 Lavaca Street, Suite 1400

 Austin, Texas 78701

Telephone (512) 472-3887

Facsimile (512) 233-1787

 STATE BAR #03526150
-13-

CERTIFICATE OF SERVICE

 As Attorney of Record for Appellant, I do hereby certify that a true and correct 

copy of this Appellant’s Brief was this date provided to the District Attorney of 

Travis County, P O Box 1748, Austin, Texas 78767, via U.S. Mail. 

Date: October 2, 2015

JOHN S. BUTLER

Attorney for Appellant

CERTIFICATE OF COMPLIANCE

 As Attorney of Record for Appellant, I do hereby certify that this document 

contains 1,679 words, as determined by Microsoft Word 2010, the computer 

program used to prepare the document.

Date: October 2, 2015

JOHN S. BUTLER

Attorney for Appellant